2. Interpretation of a statute is a question of law over which an appellate court's review is
unlimited. An appellate court is not bound by a trial court's interpretation of a statute.

3. K.S.A. 65-1,107 provides the Kansas Department of Health and Environment with the
authority to adopt rules and regulations establishing the criteria for preliminary breath
testing devices and to develop a list of approved preliminary breath testing devices.

4. A preliminary breath testing device must be approved under K.S.A. 65-1,107 by the
Kansas Department of Health and Environment before it can be used for law enforcement
purposes.

5. Because the State in this case failed to offer evidence at the trial court level that the
defendant's preliminary breath test was conducted on a device approved by the Kansas
Department of Health and Environment, the defendant's preliminary breath test result was
not admissible evidence.

6. Under the facts of this case, the arresting officer's testimony provided substantial
competent evidence to support the trial court's decision that there was probable cause to
believe that the defendant was driving under the influence of alcohol.

GREEN, J.: James Leffel appeals from the trial court's decision affirming the suspension
of his driver's license by the Kansas Department of Revenue (KDR). Leffel argues that the trial
court erred in considering preliminary breath test results from a device not approved by the
Kansas Department of Health and Environment (KDHE). We determine that because there was
no evidence in the record establishing that the preliminary breath testing device had been
approved by the KDHE, the preliminary breath test result could not be used when determining
whether probable cause existed to arrest Leffel. Nevertheless, the remaining evidence presented
to the trial court provided sufficient evidence to support its finding that the officer had probable
cause to arrest Leffel for driving under the influence of alcohol. Therefore, the trial court's
decision affirming the suspension of Leffel's driver's license was proper. Accordingly, we affirm.

Shortly after 1 a.m. on February 22, 2002, Officer Scott Carlton stopped Leffel after he
saw Leffel's car cross the centerline and then straddle the centerline for approximately one and a
half blocks. Upon approaching Leffel, Carlton smelled a strong odor of alcohol. Moreover,
Carlton noticed that Leffel's eyes were red and that his speech was slurred. When Carlton asked
Leffel if he had been drinking, Leffel responded that "he had a couple."

Leffel underwent field sobriety testing. During one of the tests, Carlton asked Leffel to
recite the alphabet. Leffel recited the alphabet to "o" the first time. Leffel was unable to finish
reciting the alphabet. Carlton also asked Leffel to perform the one-leg stand test. Leffel told
Carlton that one of his legs was disabled. Leffel agreed to try the test using his good leg. Leffel
put his foot down several times during the test. Carlton stopped the test for Leffel's safety.

After the attempted field sobriety tests, Leffel agreed to take a preliminary breath test
which was conducted on the Alco-sensor IV. Leffel's results from the preliminary breath test
results showed that his breath alcohol level was above the legal limit of .08. Carlton arrested
Leffel for driving under the influence of alcohol. After an administrative hearing was conducted,
the KDR suspended Leffel's driver's license under K.S.A. 8-259.

Leffel appealed the suspension of his driver's license to the trial court. The trial court held
a hearing at which both Leffel and Carlton testified. The only argument raised by Leffel at the
hearing was that Carlton lacked probable cause to arrest him. Leffel testified that when Carlton
stopped him, he had not been drinking alcoholic beverages for approximately 2 hours. Leffel
testified that he had not driven left of the centerline before Carlton stopped him. Moreover,
Leffel testified that he had not been drinking enough to exhibit slurred speech. Leffel indicated
that he was unable to complete the one-leg stand test because he could not maintain his balance
due to an injury to his leg and hips. According to Leffel, he explained to the officer that he had
broken his right leg in 13 places and could barely walk. Leffel acknowledged that he recited the
alphabet to only "o" but indicated that he had not recited the alphabet in 30 years.

In a written memorandum decision, the trial court affirmed the suspension of Leffel's
driver's license, finding that Carlton had probable cause to arrest Leffel for driving under the
influence of alcohol. In addition, the trial court found that "the Alco-sensor is an approved device
for determining probable cause to arrest and grounds for requiring testing pursuant to K.S.A.
8-1001."

On appeal, Leffel first argues that the trial court erred in considering the preliminary
breath test results that were obtained on the Alco-sensor IV, a device not approved for use by the
KDHE. Leffel's argument requires interpretation of the statutes pertaining to preliminary breath
testing. Interpretation of a statute is question of law over which an appellate court's review is
unlimited. An appellate court is not bound by the trial court's interpretation of a statute.
Cooper
v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).

K.S.A. 65-1,107(d) authorizes the Secretary of Health and Environment to adopt rules
and regulations establishing the criteria for preliminary breath testing devices for law
enforcement purposes. In addition, K.S.A. 65-1,107(e) authorizes the Secretary of Health and
Environment to adopt rules and regulations establishing a list of approved preliminary breath
testing devices for law enforcement purposes "which law enforcement agencies may purchase
and train officers to use as aids in determining probable cause to arrest and grounds for requiring
testing" under K.S.A. 8-1001.

The KDHE has established the criteria for approval of preliminary breath testing devices
in K.A.R. 28-32-6. Moreover, the KDHE has established the procedure for gaining approval of
preliminary breath testing devices and a list of approved preliminary breath testing devices in
K.A.R. 28-32-7(a) as follows:

"Preliminary breath test devices shall be submitted to the Kansas department of
health
and environment for evaluation and approval for law enforcement purposes. The devices shall be
operated according to the manufacturers' written directions and shall meet the criteria prescribed
in K.A.R. 28-32-6. Devices are as follows:

"(1) Alcometer S-D2

"(2) Alco-sensor

"(3) Alco-sensor III

"(4) Alco-sensor, pass-warn-fail

"(5) Alcotest

and any other devices that upon evaluation by the department of health and
environment meet the
stated criteria in K.A.R. 28-32-6." (Emphasis added.)

Although the Alco-sensor and the Alco-sensor III are listed as preliminary breath testing
devices
under K.A.R. 28-32-7(a), the Alco-sensor IV is not specifically listed under this regulation.
Moreover, there was no evidence presented to the trial court that the Alco-sensor IV had been
evaluated by the KDHE and had met the criteria of K.A.R. 28-32-6.

It is clear under K.S.A. 65-1,107 that the legislature intended to provide the KDHE with
the authority to adopt rules and regulations establishing the criteria for preliminary breath testing
devices and to develop a list of approved preliminary breath testing devices. Leffel points to
K.S.A. 65-1,109 in which the legislature made it a crime to test human breath for law
enforcement purposes unless the testing device was approved by the Secretary of Health and
Environment. K.S.A. 65-1,109 states in relevant part:

"(a) It shall be unlawful for any person to make any test of the human breath for
law
enforcement purposes, unless:

. . . .

(2) the apparatus, equipment or device used by such person in the testing of
human
breath for law enforcement purposes is of a type approved by the secretary of health and
environment and otherwise complies with the rules and regulations of the secretary of health and
environment adopted pursuant to K.S.A. 65-1,107 and amendments thereto to govern the
periodic
inspection of such apparatus, equipment and devices.

"(b) Any person who violates any provision of subsection (a) shall be guilty of a
class C
misdemeanor.

"(c) Nothing in this section shall be construed to prohibit the use of devices
approved
pursuant to K.S.A. 65-1,107 and amendments thereto for law enforcement purposes."
(Emphasis
added.)

This statute evidences the legislature's intent that a preliminary breath testing device must be
approved under K.S.A. 65-1,107 by the KDHE before it can be used for law enforcement
purposes.

Here, the State failed to show that Leffel's preliminary breath test was conducted on a
device approved by the KDHE. Because the Alco-sensor IV was not listed as an approved device
under K.A.R. 28-32-7(a), the State needed to bring forward some form of evidence showing that
the Alco-sensor IV had been evaluated by the KDHE and had met the criteria in K.A.R. 28-32-6.

The State attaches to its brief on appeal an affidavit from the KDHE's custodian of
records pertaining to the certification of instruments used for breath testing in Kansas and two
documents that the records custodian states are on file with the KDHE. The first document is
entitled "List of Approved Preliminary Breath Test Devices" and is dated January 1, 1993. The
second document is entitled "Current List of Approved PBT's" and is dated July 1, 2003. Both of
these documents list the Alco-sensor IV. Nevertheless, neither the affidavit nor the two
documents are contained within the record on appeal. "Material which is annexed to an appellate
brief by way of an appendix is not a substitute for the record itself and cannot be considered on
appeal. [Citations omitted.]" In re Gershater, 270 Kan. 620, 633, 17 P.3d 929 (2001);
see Kansas
Supreme Court Rule 6.02(f) (2005 Kan. Ct. R. Annot. 36.) (An appendix attached to an appellate
brief is not a substitute for the record itself.).

Citing State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992), the State requests
that this
court take judicial notice of the KDHE documents attached to its brief. In Witte, our
Supreme
Court, when discussing the admissibility of the horizontal gaze nystagmus test, referenced
several studies done by the National Highway Traffic Safety Administration (NHTSA). These
studies were found in 2 Nichols, Drinking/Driving Litigation § 26 app. A-C (1991). 251
Kan. at
315-16. Different from the NHTSA studies discussed in Witte, the documents
provided by the
State do not appear to be in any readily accessible treatise. Moreover, the State fails to show us
that these documents are in a readily accessible published form. Instead, these documents appear
to be internal documents of the KDHE. K.S.A. 60-412(c) allows this court to take judicial notice
of any matter specified in K.S.A. 60-409. Nevertheless, these documents do not apparently fall
within K.S.A. 60-409. Therefore, we are unable to accept the State's invitation to take judicial
notice of the documents attached to its brief.

We determine that Leffel's preliminary breath test result did not constitute substantial
competent evidence to support the trial court's decision that Carlton had probable cause to arrest
Leffel.

Probable Cause to Arrest

Nevertheless, the KDR argues that even if the trial court erroneously admitted Leffel's
preliminary breath test results, there was sufficient evidence to support the trial court's finding
that Carlton had probable cause to arrest Leffel. On the other hand, Leffel contends that the trial
court based its decision on all of the evidence presented, including the preliminary breath test
results, and did not make any specific findings concerning the disputed and contradictory
evidence presented. Therefore, Leffel maintains that his case should be remanded to the trial
court for specific findings of fact on this issue.

Leffel's argument ignores the fact that the trial court, when determining that Carlton had
probable cause to arrest Leffel for driving under the influence of alcohol, specifically adopted
Carlton's testimony. In its memorandum opinion, the trial court stated:

"The Court specifically adopts the testimony of Officer Carlton and the record attached to
the
Answer of the Defendant as if fully set forth herein and made a part hereof. Officer Carlton had
probable cause to arrest the plaintiff for DUI. [Citations omitted.]"

Thus, the trial court resolved the contradictions between Carlton's and Leffel's testimony by
adopting Carlton's testimony. As the factfinder in this case, the trial court's function was to
resolve conflicting evidence. See State v. Timms, 29 Kan. App. 2d 770, 775, 31 P.3d
323 (2001)
("It is the function of the factfinder at trial to determine the weight and credibility of witnesses.").

In arguing that there was sufficient evidence to support the trial court's decision, the
States cites Campbell v. Kansas Dept. of Revenue, 25 Kan. App. 2d 430, 962 P.2d
1150, rev.
denied 266 Kan. 1107 (1998). There, an officer approached Campbell after he had seen
Campbell
driving 72 miles per hour in a 55 miles per hour zone at approximately 1:10 a.m. When the
officer approached Campbell, he smelled alcohol on Campbell's breath and noticed that
Campbell's eyes were glazed and bloodshot. Campbell admitted to having a few drinks.
Apparently, Campbell eventually underwent field sobriety testing and was arrested. On appeal,
Campbell argued that the arresting officer did not have probable cause to believe that he had been
driving under the influence of alcohol when the officer asked him to perform field sobriety tests.
This court rejected Campbell's argument, determining that the officer's observations immediately
after he contacted Campbell "were more than sufficient to satisfy a reasonably prudent police
officer that Campbell had been driving under the influence." 25 Kan. App. 2d at 432. This court
upheld the trial court's ruling that the officer had probable cause to arrest Campbell before
administering the field sobriety tests. 25 Kan. App. 2d at 431-32.

Here, there was even more evidence than in Campbell to support the trial
court's decision
that Carlton had probable cause to believe that Leffel was driving under the influence of alcohol.
At the hearing, Officer Carlton testified that just before stopping Leffel, Carlton saw Leffel's car
cross and then straddle the centerline for approximately one and a half blocks. Carlton testified
that in his past training and experience, drivers under the influence of alcohol "do cross the
center line and stay middle, focusing on the line to make sure they go down the road safely, not
hit any other cars so they rely on the center line to–to take them down the road." Upon
making
contact with Leffel, Carlton smelled alcohol and noticed that Leffel's eyes were red and that his
speech was slurred. Leffel admitted that he had a few drinks. Leffel agreed to attempt the field
sobriety tests but was unable to complete the tests. Although Leffel explained that he was unable
to complete the one-leg stand test because he suffered from a disability which affected his ability
to balance, Leffel provided no legitimate reason as to why he could not completely recite the
alphabet.

After reviewing the hearing transcript, we determine that Carlton's testimony provided
more than sufficient evidence to establish that he had probable cause to believe that Leffel had
been driving under the influence of alcohol. We determine that there was substantial competent
evidence to support the trial court's decision affirming the suspension of Leffel's driver's license.